Conscientious objectionThe Constituent Assembly should have the final say on federalism, not Parliament
On the eve of the signing of the 16-point agreement among the four major parties which entrusted the task of finalising the federal structure of the country to an expert commission, I had written that it was like putting the cart before the horse. I still hold that view. I believe that it was devised by the four parties as an escape ladder because they could not agree on any alternative solution. In view of the wrangling over the number of states, the magical number ‘eight’ was arbitrarily invented without any logic.
Support for federalism
Let us first sort out the substantive aspect of federalisation. Nepal has a history of experimentation with decentralisation, once under the Panchayat system and the next time in the restored democratic system. Both of them would have had a higher chance of success if the political actors were sincere and serious. But both the attempts failed as they functioned under ideological biases. Then came the Maoist movement for radical change which displaced several old systems including the monarchy. The slogan of federalisation was also the brainchild of the Maoists, but it was amplified by the Madhes Movement for what they claimed would be their liberation from hill colonisation. Both the movements twisted the meaning of federalisation to something more inclined to sectarianism instead. The Maoists called for ethnic states while the Madhesi parties called for the separation of the Madhes from the hills in the name of identity. These were not viable demands.
The idea of identity-based federalisation was disputed during the entire four-year term of the first Constituent Assembly (CA), after whose failure the country elected a second CA which was not conceived by the Interim Constitution. The people more than halved their support for the so-called identity-based parties in the election to the second CA. In other words, they voted for those who said that the basis of federalisation should be factors other than ethnic or regional identity. The other factors can be availability of natural resources and infrastructure, potential for development, historical glory, socio-political make of the land, availability of educational and professional institutions and the like. Without them, the prospective federal units cannot be viable. This could be best determined by experts not beguiled by ultra ideological biases. Had the first CA proceeded with these objective criteria, the country could have had a new constitution during
its tenure. The problem lay in over-politicisation.
The recent decision of the four major parties to divide Nepali into eight states also suffers from over-politicisation. If an expert commission is to divide the country into eight states, why was it not given the authority to recommend the number of states based on viability too? Nepal is not a vast country with unlimited scope for development. Its internal strength is very limited which implies that the administrative units will always be dependent on external help for their survival. So the number of states could be reduced to five or even four.
Fault with the process
With regards to the procedures, my objection has three dimensions: moral, legal and political. Morally, the political leaders should be accountable to the people and thereby, they cannot shift their responsibility to any agency other than the CA. Most of the leaders were responsible for educating the people to come out and support the political movement that culminated in the Jana Aandolan II. The removal of the king was one consequence of that movement. The Interim Constitution was the result of that movement. The first CA was also the direct result of that movement. So, the failure of the first CA to draft the constitution was a violation of the people’s mandate. Most of the present set of leaders must be repentant at having failed to complete the constitution in time. Procedurally, no institution other than the CA can endorse the constitution. So, leaving the matter of endorsement of the federal units to Parliament is not consistent with the mandate of the people.
From a legal perspective, it is only the CA that can formulate the constitution. The Interim Constitution designed the CA-cum-Legislative Parliament as one body with the same members functioning differently in their different roles. But the CA and Parliament have different roles altogether. The new constitution can give the right to amend the statute to Parliament later, but the Interim Constitution has not given that right to the present Parliament. There is one fundamental difference between these two institutions. In the CA, there is no role for an opposition, and the parties cannot issue a whip to their members. The whole body is one for the purpose of writing the constitution while a parliament cannot function unless there is an opposition. So, legally speaking, only the CA is the representative of the sovereign people for the sake of drafting the constitution. How can the CA dissolve itself and leave the action of endorsing the federal units to Parliament? This is downright unconstitutional.
Politically speaking, the leaders of the four parties do not have the right to make decisions affecting the procedures adopted and approved by the CA. But they are liable to make a conducive political atmosphere for the CA to carry out its functions. In deciding to adopt the fast track method (curtailing the time to collect the opinion of the people on the draft proposal), the party leaders have arbitrarily deprived the people of their right to read and react in a satisfactory manner.
The full house of the CA was not given enough time to deliberate on the draft constitution. The people were only a small fraction of the time required to discuss and judge the contents of the constitution. But even with so little time, the people have been vociferous about the need to finalise the federal structure before the enforcement of the constitution.
Let CA decide
Although late, the leaders realised the need to create a federal commission was. But the flip side is that after so much hullabaloo, the said commission has not yet even formed. There might be a sharp controversy as to its neutrality. When is the right time to form the commission according to the leaders? Will it be done after the enforcement of the incomplete constitution and the dismissal of the CA? Why the hurry in dismissing the CA? As I had suggested in my earlier piece (‘The value of waiting,’ July 5), the CA could be put to hibernation and then revived when the federal commission brings out is proposal on the federal structure. This would effectively prevent a series of disruptions in the future. Copies of the first draft have already been torn in the CA. Future revolts will be more catastrophic. Is this what the leaders want?
Sharma is a freelance political analyst (email@example.com)